Book I CHAPTER II Regulations of Recruitment and Placement Activities

Question 1

Is the private sector allowed to participate in the recruitment and placement of workers?

Answer 1

ART. 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS
Pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor.

Question 2

Who are disqualified from engaging in the business of recruitment and placement for DOMESTIC employment?

Answer 2

(BLE Rules)
1. Persons convicted of illegal recruitment, trafficking in persons, violation of the child labor laws of crimes involving moral turpitude
2. Agencies whose license has been previously revoked or cancelled
3. Cooperatives
4. Law enforcers and any official or employee of DOLE
5. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement
6. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement shall be prohibited from engaging in job contracting or subcontracting activities

Question 3

Who are disqualified from participating in recruitment and placement of workers for overseas employment?(POEA Rules)

Answer 3

1. Travel agencies and sales agencies of airline companies;
2. Officers or members of the Board of any Corporation or partners in a partnership engaged in the business if a travel agency;
3. Corporation and partnerships where any of its officers, members of the board or partners is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency
4. Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance contract under the compulsory insurance coverage for agency-hired OFWs
5. Sole proprietors, partners or officers and members of the board with derogatory records, such as but not limited to the ff: 1) those convicted or against whom probable cause or prima facie finding of guilt is determined by a competent authority, 2) those whose licenses have been revoked for violation of RA8042, PD 442,RA 9208 and their IRRS, 3) those agencies whose licenses have been cancelled or those who pursuant to the order of the Administrator where included in the list of persons with derogatory record for violation of recruitment rules and regulations
6. Any official employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation Authority, international airport authorities and other government agencies involved in the implementation of RA8042 or any of his/her relative within the 4th civil degree of consanguinity/affinity

Question 4

Who has jurisdiction over OFW cases?

Answer 4

POEA - original and exclusive jurisdiction over cases involving violations of POEA rules and regulations, disciplinary cases and other cases that are administrative in character involving OFWs

NLRC- OFWs’ claims arising from employer-employee relationship

Question 5

What is the power of subordinate legislation?

Answer 5

• This is the authority given to administrative agencies to issue rules to carry out the general provisions of the statute

Question 6

Who are prohibited to conduct recruitment activities?

Answer 6

ART. 26. TRAVEL AGENCIES PROHIBITED TO RECRUIT
Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not

• persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude
• any official or employee of DOLE, OWWA, DFA and other government agencies
• any of their relatives within the 4th civil degree

Question 7

What is the citizenship requirement?

Answer 7

ART. 27. CITIZENSHIP REQUIREMENT
Only Filipino citizens or corporations, partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas.

Question 8

Who are not qualified to engage in the business of recruitment and placement for local employment?

Answer 8

1. Those who are convicted of illegal recruitment, trafficking in persons, anti-child labor violation, or crimes involving moral turpitude.
2. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exist particularly to owners or directors of agencies who have committed illegal recruitment or other related cases
3. Those agencies whose licenses have been previously revoked or cancelled by the Department under Section 54 of these Rules
4. Cooperatives whether registered or not
5. Law enforcers and any official and employee of the Department of Labor and Employment (DOLE)
6. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement
7. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement are prohibited from engaging in job contracting or sub-contracting activities

Question 9

What is the validity of a license?

Answer 9

Section 12, DO No. 141-14. Validity of license
The license shall be valid for a period of three years from the date of issuance unless sooner revoked or cancelled.

Question 10

When should an application for renewal of a license be filed?

Answer 10

• Within 30-60 days from expiration of a license

Question 11

What is constructive dismissal?

Answer 11

• Constructive dismissal exist where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer of diminution in rank or pay. Constructive dismissal does not necessarily entail a “forthright dismissal” or diminution in rank, compensation, benefit and privileges. Constructive dismissal also exists in cases where an act of clear discrimination, insensibility or disdain by an empoyer becomes so unbearable on the part of the employee that it could foreclose any choice by him (or her) except to forego his (or her) continued employment.(Jacob vs 1st step manpower)

Question 12

May a license of authority be transferred?

Answer 12

ART. 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY
No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor.

Question 13

What is the amount of bond required for recruitment or manning agency for overseas employment?

Answer 13

1. Escrow Agreement in the amount of one million pesos (P1,000,000.00), with confirmation of escrow deposit with an accredited reputable bank; and
2. surety bond in the amount of one-hundred thousand pesos (P100,000.00) from a bonding company acceptable to the POEA and accredited with the Insurance Commission.

Question 14

What is the purpose of bonds?

Answer 14

• Cash and surety bonds are required by the POEA and its predecessor agencies from recruitment and employment companies precisely as a means of ensuring prompt and effective recourse against such companies when held liable for applicants or workers’ claims. (Finman General Assurance vs. Innocencio)

Question 15

When must fees be paid by workers?

Answer 15

ART. 32. FEES TO BE PAID BY WORKERS
Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees.

Question 16

What are the chargeable fees and replacement in local employment (BLE Rules)

Answer 16

General Rule: No fees shall be collected or deducted from the salaries or wages of workers
Exception: An agency may charge the EMPLOYER the following:
1. Service fee
2. Transportation expense

Question 17

What is the rule on replacement of workers?

Answer 17

1. Replacement of worker without cost when:
   a. Worker is suffering from mental or physical illness within one month from 1st day of work
   b. Worker abandons the job, voluntarily resigns , commits theft or any acts prejudicial to the interest of the employer within 3 months from 1st day of work
2. Refund of 75% service fee and transportation fee is agency fails to provide replacement within 1 month from request based on the above grounds
3. Forfeiture of rights if the request is made after 1 month for case 1a or after 3months for case 1b

Question 18

What fees or costs are chargeable to OFWs?

Answer 18

1) Placement fees except for domestic workers and those deployed to countries which do not allow collection of placement fees
2) Documentation costs such as passport, NBI clearance, NSO birth, TOR etc

Question 19

What are prohibited practices for license or authority holders?

Answer 19

ART. 34. PROHIBITED PRACTICES
It shall be unlawful for any individual, entity, licensee, or holder of authority:
(a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code;
(d) To induce or to attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment;
(e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;
(h) To fail to file reports on the status of employment, placement, vacancies, remittances of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor;
(i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor;
(j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations.

Question 20

Which government agency is given the authority to suspend or cancel a license or authority?

Answer 20

• the power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor.” (People vs. Diaz, 259 SCRA 441 [1996]).

Question 21

Who is liable for the unpaid salary of a worker?

Answer 21

• A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with a foreign principal.
• In applying for a license to operate a private employment agency for overseas recruitment and placement, petitioner was required to submit a verified undertaking. In that document, the agency assumed all responsibilities for the proper use of its license and the proper implementation of the employment contracts with the workers it recruited and deployed for overseas employment. (Royal Crown Internationale vs. NLRC)

Question 22

What are the exemptions to the solidary liability rule?

Answer 22

• The rule holding the agency solidarily liable admits of exceptions depending on peculiar circumstances. In one case where the workers themselves insisted for the recruitment agency to send them back to their foreign employer despite their knowledge of its inability to pay their wages, the Court absolved the agency from liability